The Biden Administration Vax Mandate for Federal Contractors

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As readers may already know, on September 9, 2021, the Biden Administration reinvigorated its effort to combat COVID-19. Widely known is the Biden Administration’s vaccination mandate for large employers (i.e., employers with at least 100 employees). Lesser known is that, on the same day President Biden executed two executive orders:

  1. Executive Order 14042, notifying some federal contractors that they are to anticipate new safety COVID-19 protocols
  2. Executive Order 14043, which requires vaccination for federal employees.

By September 24, 2021, the Safer Federal Workforce Task Force (the “Task Force”) is required to publish the new safety COVID-19 protocols requirements for contractors and subcontractors. We are still waiting for these guidelines to be released. However, the Task Force released a FAQ on September 20, 2021, that provides some clarity relating to federal contractors and vaccination status requirements when working on government sites.

  • Contractor employees must submit and complete a Certification of Vaccination Form (the “Certificate”) to agencies when they enter a “federal building or federally controlled indoor worksite” confirming whether they have been vaccinated. The Certificate states that false statements could result in fines or imprisonment under 18 U.S.C. § 1001 and removal of those employees from their positions or from the federal contract.
  • A copy of a contractor employees’ Certificate must be kept on their person when at a federal building or federally controlled indoor worksite to demonstrate proof of their vaccinated status.
  • Contractor employees who have not been fully vaccinated or decline to provide status on same must comply with all the following COVID-19 safety protocols while at a federal building or federally controlled indoor worksite, including:
    1. Wearing a mask regardless of the level of community transmission;
    2. Physically distancing; and
      • Either:
        1. Providing proof of a negative COVID-19 test result from within the three-day period prior to entering a federal building or federally controlled indoor worksite; or
        2. Undergo regular testing pursuant to an agency testing program.
  • Agencies will have the discretion to determine what types of tests unvaccinated contractor employees are permitted to show as documentation for access to a federal building or federally controlled indoor worksite, provided that such test has been authorized by the FDA.

Notably, the FAQ states that it strongly encourages agencies to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042. Thus, even if federal contractors determine later that the new COVID safety protocols don’t apply to them (e.g., contractors with federal contracts solely supplying products), they may still be subject to vaccination requirements. Federal contractors will need to review their new and renewed contracts after October 15, 2021, to determine whether new vaccination requirements have been incorporated.

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This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.